Your right to protest as a non-citizen in America from a criminal attorney in 2024

With everything happening in the world today, there might come a time when you think enough is enough and you want to protest with those others outside. It's a right for citizens of the United States protected under their freedom of speech, but does that extend to you as a non-citizen? I spoke with criminal attorney, Doug Schneider to talk through what impacts there might be to you and to find out what you should do in case trouble arises.

Doug is highly respected in his field, but it's always up to you to retain personal legal advice from your own attorney in case any issues or arise, or if you want advice on your own personal situation. This video and this page are not personal legal advice.

I also posted a chat with immigration attorney, Doug Lightman, which you can watch here.

Your right to protest as a non-citizen from a criminal attorney, Doug Schneider

America Josh: We're here with Doug Schneider- the owner of Schneider law. Thank you, Doug, for joining us today to answer some of the questions that we've had sent in happy to be with you. So basically, we've had a lot of people who are non-citizens. They have ex-pats they've lived in the United States for you know, some of them only a few months, but some of them have lived here almost their entire lives and with everything that's going on. They're eager to get outside. They're eager to become part of the movement that's going on in the world today. And I guess very broadly from a legal perspective. Are non-citizens allowed to take part in a peaceful protest?

Are non-citizens allowed to take part in a peaceful protest?

Doug Schneider: Yes, every person who is physically in the United States has the same first amendment rights. So regardless of your immigration status, you have the same right to free speech, the same right to peaceably assemble the same right to attend protests. So the answer is yes!

America Josh: Okay! So for all intents and purposes, if you hear some news about something that applies to an American citizen that can sort of transferable apply to you when it comes to this realm of things?

Is everything available to citizens the same for non-citizens when it comes to protest and freedom of speech?

Doug Schneider: Yeah! It's not that there aren't risks, obviously if you choose to protest and are not a US citizen, but there is no distinction in the right to protest based upon your immigration status. And so you can protest you know legally and peacefully for any issue that you want. You know, provided that you know you deviate into you know any type of violation of the law. The constitution protects you regardless of your immigration status.

America Josh: So if I go to a protest, you know it started peacefully, and I'm starting to feel a little bit uncomfortable things are sort of changing, and I'm noticing things going on around me. Is there anything that you recommend people do? Is it just, you know, turn the other way and leave, or should you be sort of observing any other checks before you go?

What should you do if a peaceful protest becomes non-peaceful?

Doug Schneider: Well, I think the best practice would be to calmly leave any area that you believe could escalate from a peaceful protest, and I would not run because running will catch the eye of authorities and can give them an independent reason to stop you. So I would walk calmly. I would also make sure that I survey the escape routes because, in a lot of these protests, the police are kind of surrounding people and not giving people an avenue to exactly to safely get out.

So I think that when you get there to the protest, you should take stock of yourself to know where you think you might go. If things devolve into something other than peaceful protest if there is a place that you can go indoors as a last resort to separate yourself. You know you can do that, but I think you gotta have a good sense to be able to recognize early the potential for things to escalate beyond peaceful protest. 

America Josh: Yeah! So it's really staying aware beyond just what's happening in the protest, and it's more having a look around making sure you know your surroundings if you're marching sort of have a bit of foresight to see where you're headed and what's behind you to make sure you know what's next? 

Doug Schneider: And it also the buddy system is also a very good thing to do when you are planning to go to a protest you know you should to the extent possible link up with you know more people that you know who is going, and you know kind of all have the same plan and be able to look out for each other. And this buddy system will kind of echo through, you know a lot of the best practices you know that you and I are going to talk about. 

America Josh: So let's hypothetically say things do devolve and you are still there or even if you're trying to exit and a police officer, for example, comes over you haven't been arrested or anything, and they confront you what do people need to know I sort of know that? I think I know in New York state, for example, you don't have to give identification or say your name but is that correct, or do you know what you would say if a police officer comes over to you? What should you know first? 

What should you do if confronted by a police officer?

Doug Schneider: Well, first, you should know what your rights are right, and you have the right to remain silent. You do not have to identify your immigration status; you have the right to film any interactions in a public space, but the important thing is that you should comply with an officer. Even if what the officer is asking you to do is it would violate your rights. The street is not the place to necessarily vindicate those rights. I think this is especially true for people that may have immigration consequences for doing so.

So for myself as an attorney, my standing up for my rights is probably different based upon both my knowledge, my ability to talk with the police, and the different consequences that I would face. I’ll give you an example. I was leading a protest in Brooklyn, and an officer approached me and told me we had to cross the street. And I very calmly and politely told him, “No, we don’t.” And we are in a pub in the same public space, and we’re not gonna do it, but we will work with you to make sure that you know there is room on the sidewalk for people to pass that we don’t block the entrance to the location and it worked. Right! And that’s I think not something that everybody can expect to be able to convince the police, especially in bigger protests with you know more potential for violence or agitation. I think that it’s important to know what to do if you think your rights are violated by an officer.

And you know it is the best thing to do is obviously documentation as soon as possible write down everything that that you remember the date it so that you have a contemporaneous record, photograph any evidence. If an officer touches you and it and it and you are harmed in any way, photograph the injury and going back to that buddy system that I mentioned earlier, you want to make sure that you have contact information for any people who were witnesses. And so the buddy system makes that easier as long as you are together but even if not, you know you should try to make sure that you get contact information for anybody in the vicinity that saw the interaction.

America Josh: Okay! So at a first resort, you know, don’t engage with the police, but if you are engaged and they ask you, request you to do something the easiest sort of to avert potential problems moving forward, assuming things haven’t sort of escalated completely out of control is to you know to present them. Are that things like, you know, if they ask for your license, is that something that you should hand over, or is it just sort of verbally saying your name and then and say that’s all I’m willing to?

Doug Schneider: Well! What I would say is in the first instance, you should certainly you should certainly vindicate you know attempt to vindicate and enforce your rights. So if an officer came to me and said, you know you can't film in a public space, I would say, you know, officer, I am within my rights to the film in a public space, and if the officer you know told you, to move you should move. And if the officer told you to move again, you know you should move again even if the officer is wrong. You know, and if an officer again, like if an officer confiscates your phone, he grabs it and he takes it away from you. You should make sure that you know document it you know to make sure you know who that officer is and not fight on the street. 

America Josh: So it's worth it's basically worth it! You take all the notes, and everything you do is just going to compile into something that they'd approach. You know someone like yourself you can approach a lawyer later and say here's everything that happened here's all my evidence that's a safer route than sort of contesting things beyond saying you know I would like to acknowledge my rights here but then if it really sorts of push comes to shove do as you're told and then take notes and pursue that later? 

Doug Schneider: Yeah, basically, the way I would sum it up is that I would make sure that the officer knows that I am invoking my rights. So, for example, if the officer you know approaches me and starts asking me questions, I would say officer, I choose to remain silent. If the officer is not does not comply with that and exerts some type of force or pressure to get you to speak, the street is not the place to do that.

Again if you're video recording somebody in a public space and the officer says you have to turn that off, you know I would again say no, officer, I have a right to video recording in public. And if the officers you know essentially make it clear to you that he's not going to allow you to, you know your right to record the street is not the place to argue. Compile it in addition to perhaps seeking you know legal representation. After that, you can also make complaints with the agency. So that would be a civilian complaint, you know to the NYPD or the what we call the CCRB, which is the civilian, you know, report bureau that allows us to make investigates complaints against cops specific building complaint review board. 

America Josh: Fantastic! So if sort of to keep progressing through this hypothetical if you are arrested, and you know you put in cuffs and sort of led away. What should you be doing again, we’ve got people that they’re not citizens, and immediately I imagine the pressure is suddenly going to build because you’re thinking, oh my god, you know this is going to impact me further. What do you advise people should do if they are arrested sure?

Doug Schneider: So there are certain very basic musts that any person who is arrested whether an immigrant or a citizen, should follow.

Number one: Make no statements.

Number two: If you are asked a question, you should say I wish to invoke my right to remain silent. Should you are not required to divulge your immigration status. You should not sign anything. You should demand your right to see an attorney if you happen to go before a judge without an attorney, which happens in some locations at the initial appearance. You should absolutely not plead guilty to anything until you’ve had a chance to meet with an attorney. You shouldn’t sign anything unless you’ve met with an attorney, and that’s the most, and those are the most important things. Don’t say anything, don’t sign anything, don’t plead guilty to anything.

America Josh: So if you are arrested, and you’re taken back to a precinct, and they ask for some details when you’re first taken in, should you be giving that information to an officer?

Do you have to answer identification questions?

Doug Schneider: So the officer will have will ask you for pedigree information which he has a right to and you should provide and that will be your name, your address, your date of birth that type of information. If the officer asks you for identification, you have the right not to give identification. However, there are practical consequences to doing so, which is that an officer is not going to kind of move your case along until you can verify your identification. And if the officer thinks that you know you are not cooperating, then he's not gonna be in a rush to verify your identification. And the most practical application of this is that for a lot of the low arrests that are occurring at protests.

The arrested person is being given what's called the desk appearance ticket, which is essentially a summons to come to court to answer the charges at a later date. You know that can happen, you know fairly quickly if they once they confirm your identity you know sometimes you know faster than four hours. However, if the officer can't you know verify your identity or is concerned about your identity and your truthfulness, he can process the arrest then in there and not give you a desk appearance ticket, in which case you'll be held until you can see a judge which in New York is typically can take up to 24 hours.

But in these protests, because of Covid and because the courts are operating virtually, the courts have been given far more time before to be held to be brought before them. And so you could end up being held, you know 36 you know or more hours in some piece of circumstances.

America Josh: Okay! So pre-arrest, you've got a little bit more latitude, and you can say you know I'm exercising my right not to respond. Post-arrest which you could still comply if you want to post-arrest sort of name, address, date of birth you'll provide them, and as much as you absolutely do have the right to not give id it sorts of a weighing up your rights with the practicality of the fact that you might be then held for 24 or 48 hours so that they can confirm who you are which you know is obviously it's a huge thing to do any sort of weighing up that whether you want to do that or whether you want to present id and potentially sort of just process the thing.

Doug Schneider: Yeah, and I think that that you know the calculus is very different pre-arrest and post-arrest. Pre-arrest the officer really doesn't you have really no obligation to provide any of the pedigree information. Post the rest. The officer has the right to take down your pedigree information and verify your identity for you know for obvious reasons that you know you have to be entered into you know the system.

America Josh: So before you go to a protest, what should you know about your sort of legal immigration status? 

As non-citizens what should you check before you protest?

Doug Schneider: Yeah! I mean, I do think it's important that before you go to a protest, you just verify that your documentation is up to date. Just make sure that there's no question about your legal status in the country. 

America Josh: And why is that sort of what can happen if you do sort of accidentally fall out of status and then you go to a protest, and you're arrested? Does that change things dramatically for you? 

Doug Schneider: Yes! Anybody who lacks legal status in the United States for any reason needs to be aware that the consequences of an arrest are very different than if you have legal status. First of all, if you lack legal status and are arrested, it increases the chance that immigration authorities will catch up with you. And also, it's very important to understand that even if initially immigration officials don't catch up to you. The consequence of a conviction for a lot of things will be very different and have more drastic results for somebody who lacks legal status where it is easier to expel somebody from the country. Then it is if you know you have legal status. 

America Josh: If you are approached by a police officer, and they ask for identification, and you decide you know that you give them the identification I know that some licenses like the New York State driver's licenses include a bit about limited terms and have something about the temporary visitor. If they ask for a follow-up like, are you in the country legally? Do you have to respond to an officer asking that kind of question?

Do you have to answer a police officer who asks immigration-related questions?

Doug Schneider: You don't, and that is true both pre-arrest and post-arrest. If an officer approaches you on the street and asks you about your immigration status, you should say, “I choose not to answer that, or I don't have to answer that.” In the post-arrest context, you should again say something to the effect of I wish to invoke my right to remain silent. In addition to that, if you are asked at any point for identification, you should not be using you're not required to use any type of immigration documentation or anything that suggests you are legally or without documentation. 

America Josh: So if you're planning to go to a protest. I think you've you and I talked before, and you had a great list of things that you should consider, so you've already considered that you've got legal status. And you've made sure of that one of the first things you mentioned was a buddy. You mentioned the buddy system, so your recommendation would be just as a precaution you should always go to a protest with someone else? 

Doug Schneider: Yes, I think that that that really helps you in many ways that we've already talked about from having somebody to be with you. In case you leave together with another set of eyes, if you need to divorce yourself from a situation, have somebody with you to be able to witness any type of interaction. And also if you are arrested, and they're not, you know somebody who knows that you've been arrested and can contact you know whether it's family, whether it's the lawyer, you know somebody that's going to be on the outside so to speak and able to able to assist you. 

America Josh: Awesome! The second one you mentioned was an immigration lawyer like sorry, a criminal lawyer or a lawyer's details you should be carrying a card or some details? 

Doug Schneider: Yeah! I think that it does make sense to carry with you if you have one- the card of an immigration attorney a criminal defense attorney; you can also look before you go for some of the civil rights organizations that are providing assistance. And one of the things that that you can do with that is going back to that buddy system. If you know if you are going to be arrested is, you can give that card to the buddy and say, please call this person immediately. 

America Josh: And that is that's not a movie trope you know you do if you do get arrested you do get a phone call as soon as you get there or? 

Do you actually get one phone call if you're arrested?

Doug Schneider: No, that's a I mean that's a that is like you know you have the right to make one phone call no that's not really it's not really how it works. However, the biggest thing is that if a lawyer learns it early that you've been arrested, okay. And you know you can proactively you know find out where that what precinct that person is being brought to would be very helpful okay. That lawyer can call proactively and say, I represent you know, Josh. He is represented by an attorney. He should not be questioned, and if any questioning has started already, it should cease immediately. And so that is legal protection so that if by chance after the lawyer has made that notification, you are continued to ask questions. Those questions would violate your right to remain silent and your right to counsel. 

America Josh: Fantastic! The third one you mentioned was a phone or camera or phone and camera. I guess they're one device now?

Doug Schneider: Yes, and to me to be specific, you know, unless you are a news journalist, which unfortunately we actually just saw the really egregious assault of an Australian news crew. You know you should not be carrying you know kind of professional-grade you know video or you know point-and-click cameras, but you know a good cell phone that can take good video. Oh, also very important to make sure your cell phone is charged. If you have you know a small you know auxiliary battery or charging device, it's also not ideal to have you have that with you. Nothing large you don't want to carry anything large you know to a protest and anything that could be misunderstood for you know for any type of weapon.

America Josh: Awesome! And just to confirm one more time, if you're on public property, you are allowed to film as long as you're not getting in the way and as long as you're sort of standing clear of anything and disrupting anything. You are legally allowed to film anything you want, including police officers that isn't a right that you have?

Are you allowed to film anything and everything on public property?

Doug Schneider: Yeah, if you are in a public space, you have that right you know if n a private space or in you know in a government building, you know that's very different. Most government buildings don't allow you to record, and in a private space, the owner can dictate the terms of recording. But in a public space, for example, an outdoor protest, you know you have the absolute right to record anything in a public space. So even if the police demand you turn it off or another person demands you turn it off, you know you don't have an obligation to do so. You know a lot of times the police will stand in front of you know to try to block you again you have the right to you know to move to the side the most important thing is that you make sure that you don't interfere either intentionally or inadvertently with the police action that you are recording. And even if the officer tells you to move back, move back, move back, and you know you don't want to, you know do so you think that's unfair. You should nonetheless, you know, do your best to comply with the officer while still reporting.

America Josh: Fantastic and the fourth thing that you mentioned that you should have on you if you're going to a protest is some identification. So I know I've read sort of some mixed information about whether you should or shouldn't, but it's sort of just to keep the process moving in case you are arrested. Is it handy to have that identification on you?

Doug Schneider: My position is this if your identification doesn't reveal that you lack legal status in the United States, there's really no harm in having identification with you. Whereas there is the benefit that allows police to verify your identity much, much quicker. But if you have concerns about your identification or the only identification you know you have reveals you know your lack of legal status in the United States, that is a different calculus. 

America Josh: Absolutely, and I think we talked earlier about ID NYC is a great resource for people who want another form of identification that doesn't contain anything about legal status in the country. It's just a photo ID that has your I think it has your name and address on it, and that's it. So that's a good option for people if they're looking for some form of identification. You mentioned a couple of things you shouldn't bring, and you m mentioned one just before, so sort of the first one you mentioned just a second ago was anything that could resemble a weapon. What else? What other things should you sort of really reconsider taking to a protest? 

What things should you not carry to a protest?

Doug Schneider: Yeah, I would recommend that you not carry anything that's not necessary, so if you have and if you have, you know you normally carry a group of keys, but you don't need all of them with you. I would bring just the keys that you would want to have with you, know a house key, something like that. I would not carry a large sum of cash. And I would not carry a large wallet, you know, I would probably carry, you know, a small amount of cash and, you know, one credit or debit card. I would not wear jewelry, don't wear a fancy watch, don't wear a necklace a ring. Don't wear don't bring anything with you that you would not want the police to seize and hold on to for a significant period of time if you were arrested.

America Josh: Okay, so you may not say that again for some time if you're arrested with those items? 

Doug Schneider: Yeah, a good example is there was just a really egregious arrest of an actually a defense attorney who was reporting police interaction, and just like we talked about earlier, they arrested her for, you know what they call obstruction of government administration interfering with the arrest. And now they illegally, in my opinion, confiscated her phone and are holding it as at holding it as evidence. 

America Josh: Wow, okay! So yeah, a good tip, so take only absolutely what you need nothing of great value and nothing that can resemble a weapon. 

Doug Schneider: Great!

America Josh: Awesome! So hypothetically, you're arrested. You've contacted your criminal defense lawyer. Is there anyone else that you think you know is really important to contact if you have been arrested?

Aside from a criminal lawyer, who else should you contact if you're arrested?

Doug Schneider: I think that when you were arrested, you will discuss you'll discuss the charges with your criminal defense attorney, and as the case progresses, you'll need to consider you know the immigration consequences of any action that you take. So you need to know what the immigration consequences are if you plead guilty to you know a particular crime, you need to know what happens if you know to go to trial and are convicted of something. Your criminal defense attorney is obligated to give you correct information about immigration consequences. But I still think that the best practice is to trust but verify. So to make sure that you've satisfied yourself that the criminal defense attorney is obviously you know competent enough to give the immigration advice. And you know, obviously, the best thing to do would be to verify it with an immigration attorney. 

America Josh: Fantastic! So you best bet call the criminal defense attorney have them like on their way kind of thing, and then you can discuss with them that you want to involve an immigration attorney would probably be the best course of action so that you've got everyone on the same page sort of all pushing in the same direction.

Doug Schneider: Yes!

America Josh: Fantastic! Well, thank you very much, Doug, for taking the time. And I sincerely appreciate you helping everyone out. I will put your details throughout this video and in some notes below so that if people are going on protests, they can write your number down or carry it on them so that they've got your details in case they are arrested and you are a criminal defense attorney who can help them out.

Doug Schneider: And I really this was a great conversation. I appreciate you having me on, and I will just say that it's great that we're having this conversation because it means that not just us citizens are out on the street, you know, demanding equal rights for everybody. I think that's really inspiring.

America Josh: I couldn't agree more. Thank you again, Doug!

Doug Schneider: All right! Thanks, Josh!